Nampa & Meridian Irrigation District v. Barclay

• Decision Date: 25 July 1935
• Docket Number: 6213
• Court: Idaho Supreme Court
• Parties: NAMPA & MERIDIAN IRRIGATION DISTRICT, Plaintiff, v. ADAM B. BARCLAY, Presiding Judge, WILLIAM E. WELSH, Water Master of Water District 12-A of the State of Idaho, DRAINAGE DISTRICT No. 4 OF ADA COUNTY, IDAHO, and the BOARD OF COMMISSIONERS OF DRAINAGE DISTRICT No. 4 OF ADA COUNTY, IDAHO, Consisting of GEORGE R. AMES, JOHN T. BARBER and JAMES KEENER, Commissioners, Defendants

47 P.2d 916

56 Idaho 13

NAMPA & MERIDIAN IRRIGATION DISTRICT, Plaintiff, v. ADAM B. BARCLAY, Presiding Judge, WILLIAM E. WELSH, Water Master of Water District 12-A of the State of Idaho, DRAINAGE DISTRICT No. 4 OF ADA COUNTY, IDAHO, and the BOARD OF COMMISSIONERS OF DRAINAGE DISTRICT No. 4 OF ADA COUNTY, IDAHO, Consisting of GEORGE R. AMES, JOHN T. BARBER and JAMES KEENER, Commissioners, Defendants

No. 6213

Supreme Court of Idaho

July 25, 1935

WATER AND WATERCOURSES-WATER MADE AVAILABLE BY DRAINAGE DISTRICT-APPROPRIATION BY DISTRICT-RIGHTS OF DISTRIBUTORS-LITIGATION INVOLVING APPROPRIATION, PARTIES TO ACTION-WATER MASTER, DUTIES-PROHIBITION, WHEN GRANTED.

1. A water user who acquires his right through sale, rental or distribution from ditch or canal company or an irrigation or drainage district does not acquire rights of an appropriator of the water and thus is not entitled to same consideration in litigation involving the original appropriation as is the company or district (Const., art. 15, secs. 1, 4, 5; I. C A., secs. 41-2501 to 41-2531.

2. Consumers of water who acquire their rights through district which is appropriator and owner have no right which they can assert against other appropriators and it is the business of the district under which they claim to protect the appropriation and defend it in any litigation that arises (I C. A., secs. 41-2501 to 41-2531; Const., art. 15, secs. 1, 4, 5).

3. One who acquires right to use water from appropriator whose right was initiated by appropriation under Constitution is not owner of appropriation and does not acquire rights of an appropriator, but simply of user and consumer as distributee of the water (I. C. A., secs. 41-2501 to 41-2531; Const art. 15, secs. 1, 4, 5).

4. Irrigation district that brought action against water master to require distribution in accordance with its adjudicated rights and joined as defendant drainage district, the recipient of water allegedly diverted from irrigation district held not required to join as defendants water users of the drainage district, since their rights depended on the rights of the drainage district from which they obtained use of the water and they could have no defense not available to drainage district (I. C. A., secs. 41-2501 to 41-2531; Const., art. 15, secs. 1, 4, 5).

5. Water master is administrative officer whose duty it is to distribute waters of his district in accordance with respective rights of appropriators and adjudicated rights having preference over unadjudicated rights and appropriations (I. C. A., sec. 41-507).

6. Drainage district is a corporation organized under authority of statute and is owner of appropriation and land owners in the district for practical purposes sustain same relation to it that stockholders in private corporation sustain to the corporation (I. C. A., sec. 41-2501 et seq.).

7. Prohibition held to lie to arrest further proceedings under order requiring water users of drainage district to be made defendants in action for adjudication of water rights between districts, since remedy by appeal was neither speedy nor adequate, where trial would involve bringing in hundreds of defendants and requiring many different answers and calling of multitudes of witnesses to sustain issues (I. C. A., sec 11-201 and sec. 41-2501 et seq.

APPLICATION for Writ of Prohibition. Demurrer to petition overruled and alternative writ made permanent.

Demurrer overruled and alternative writ issued. Costs to plaintiff.

McElroy & Chalfant, for Plaintiff.

Jurisdiction of drainage district to appropriate water. (Sec. 41-2502; sec. 41-107, I. C. A.; Yaden v. Gem Irr. Dist., 37 Idaho 300, 216 P. 250, note 4.)

Land owners in drainage district neither necessary nor indispensable parties to suit. (Farmers' Co-operative Ditch Co. v. Riverside Irr. Dist. et al. (First Appeal in Boise River Priority Suit), 14 Idaho 450, 464, 94 P. 761, 763.)

Under sec. 41-2502, I. C. A., it is the duty of the drainage district to appropriate the water developed by its drainage works, and to distribute the same to its land owners as provided by law.

Under sec. 41-2539 the legal title to all property acquired by the drainage district by operation of law "vests immediately in the district and is held in trust for, dedicated to and set apart to the use and purposes provided by law," as declared in case of Yaden v. Gem Irr. Dist., 37 Idaho 300, 216 P. 250, headnote 4.

E. B. Smith, Frank T. Wyman, T. L. Martin, Laurel E. Elam, Charles F. Reddoch, Walter Griffiths, Bert H. Miller, Attorney General, and Leo M. Bresnahan, Assistant Attorney General, for Defendants.

Prohibition will not ordinarily be granted where the usual modes of review by appeal or writ of error furnish an adequate remedy for the correction of an injury resulting from the unauthorized exercise of judicial power. (50 C. J., sec. 58, p. 684; Thompson v. Adair, 36 Idaho 790, 214 P. 214; The Natatorium Co. v. Erb, 34 Idaho 209, 200 P. 348; Fraser v. Davis, 29 Idaho 70, 156 P. 913, 158 P. 233; Willman v. District Court, 4 Idaho 11, 35 P. 692.)

The adequacy of the remedy appeal does not depend upon, and is not to be tested merely by, the delay, expense or inconvenience which may result to the party availing himself of such remedy. (The Natatorium Co. v. Erb, supra; Olden v. Paxton, 27 Idaho 597, 150 P. 40; Willman v. District Court, supra; 50 C. J., sec. 57, pp. 683, 684, sec. 59, p. 687.)

The land owners and water users within Drainage District No. 4 are necessary and indispensable parties to any proceeding affecting the drainage waters within the district. (Nampa & Meridian Irr. Dist. v. Welsh, 52 Idaho 279, 15 P.2d 617.)

AILSHIE, J. GIVENS, C. J., and Budge and Holden, JJ., concur. Morgan, J., did not sit at the hearing nor participate in the decision in this case.

OPINION

AILSHIE, J.

Plaintiff, Nampa & Meridian Irrigation District, filed its petition in this court, praying for a writ of prohibition directed to Honorable Adam B. Barclay, presiding Judge of the Third Judicial District for Ada County, for the purpose of arresting further proceedings under an order made and entered by him in September, 1934, requiring plaintiff to serve and bring in as parties defendant all the water users of Drainage District No. 4 of Ada County. The petition is predicated on the contention that the order made, upon which the court purposes to proceed, is in excess of and without the jurisdiction of the court. Defendants have demurred to the petition.

It appears that in October, 1933, plaintiff Nampa & Meridian Irrigation District filed its amended complaint in the District Court of Ada County against William E. Welsh, Water Master of Water District 12-A of the State of Idaho, Drainage District No. 4 of Ada County, Idaho, and the Board of Commissioners of Drainage District No. 4, consisting of George R. Ames, John T. Barber and James Keener, Commissioners. The essential allegations of the complaint, which are of importance here, are to the effect that the plaintiff has adjudicated water rights from the waters of Boise river: One for an appropriation of 8,500 inches dating from May 1, 1878, and designated as Allotment No. 67, under what is generally referred to as the Stewart Decree (Farmers' Coop. Ditch Co. v. Nampa & Meridian Irr. Dist., 14 Idaho 450, 94 P. 761 and Farmers' etc. Co. v. Nampa etc. Irr. Dist., 16 Idaho 525, 102 P. 481. See, also, Owen v. Nampa & M. Irr. Dist., 48 Idaho 680, 285 P. 464), and the other for 18,542 inches, dating from August 20, 1888, and designated as Allotment No. 106, under the Stewart Decree; and that the plaintiff is and has been at all times since the entry of the said decree entitled to have the waters distributed to it in accordance therewith, subject only to certain diminutions in times of water shortage which have been taken care of by temporary decrees from time to time and which orders are not material for our present consideration.

It further appears that defendant Drainage District No. 4 is duly organized and operating under Chapter 25, comprising secs. 41-2501 to 41-2531, I. C. A., and that under the authority of sec. 41-2502 a considerable volume of water has been developed or made available through the works and operations of the drainage district, and that its commissioners have in conformity with the statute filed upon and appropriated the waters created and made available by the construction of drains, drain ditches and canals and have apportioned and allocated such water to the property owners within the district in the proportion that their several assessments bear to the whole assessment within the district.

It is also alleged by the plaintiff that the water master (Welsh) has been delivering and threatens to continue to deliver approximately 700 inches from plaintiff's water allotment No. 106 to the drainage district; and that the drainage district was not a party to the Stewart Decree and has no adjudicated water right.

The contention of counsel for the drainage district, and the commissioners thereof, upon which the order here complained of was based, is in substance the same as the reasons given for making the order which are very succinctly and clearly set forth in Judge Barclay's order as follows:

"It is further hereby ordered that with respect to the motions of the defendants to require additional parties to be brought in and made parties to this action, that the amended complaint before me, in effect, alleges that defendant William E Welsh, as Watermaster of Water District No. 12-A, is unlawfully distributing seven hundred (700) inches of water to the landowners within the boundaries of Drainage District No. 4 of Ada County, Idaho; that the answers of the defendants deny this and aver that the water...