Nielson v. Board of Directors of Big Lost River Irrigation District

• Decision Date: 30 September 1941
• Docket Number: 6923
• Citation: 117 P.2d 472,63 Idaho 108
• Parties: WILSE A. NIELSON, Appellant, v. BOARD OF DIRECTORS OF BIG LOST RIVER IRRIGATION DISTRICT, Respondent
• Court: Idaho Supreme Court

117 P.2d 472

63 Idaho 108

WILSE A. NIELSON, Appellant, v. BOARD OF DIRECTORS OF BIG LOST RIVER IRRIGATION DISTRICT, Respondent

No. 6923

Supreme Court of Idaho

September 30, 1941

IRRIGATION DISTRICTS-EXCLUSION OF LANDS FROM-PLEADING.

1. Where plaintiff had pleaded that decree had been entered excluding his land from irrigation district but did not plead invalidity of that decree, he was not entitled to another decree to same effect, as he had not alleged any reason why same relief should be again granted, nor shown himself to be entitled to another such decree.

2. Where there was no allegation in petition as to when or how petitioner became successor in interest to one whose land had been decreed to be excluded from irrigation district or as to who had paid assessments wrongfully levied on such land and collected by irrigation district, the petition was insufficient in not stating a cause of action for recovery of assessments.

3. Under statute, lands which cannot derive benefit therefrom may be excluded from irrigation district. (I. C. A. sec 42-1101 et seq.)

4. The statute providing for exclusion from irrigation districts of lands which cannot derive benefit therefrom requires that land-owner desiring to have his land excluded from irrigation district shall describe it in his petition filed for that purpose with board of directors of irrigation district. (I C. A. sec. 42-1101 et seq.)

5. In proceeding to exclude land from irrigation district, petition alleging that former decree excluding land from irrigation district referred to petitioner's lands was demurrable on ground that allegations were not of "ultimate facts" necessary to statement of cause of action but were merely statements of petitioner's "conclusions."

6. When the sufficiency of a pleading is questioned by general demurrer, the pleader's conclusions cannot be made to take the place of indispensable facts.

7. A pleader must state facts of his case by direct and positive averments, not leaving them to be deduced by argument and inference and, if he omits essential facts from his pleading it is demurrable.

8. A demurrer admits all material facts well pleaded and all necessary intendments and inferences therefrom.

9. Failure to allege material facts necessary to cause of action or defense raises presumption that such facts do not exist.

10. In proceeding to exclude land from irrigation district, petition failing to allege that land was described in petition of petitioner's predecessor to board of directors of irrigation district as required by statute, and showing that land was not described in former judgment excluding it from irrigation district, was demurrable. (I. C. A. sec. 42-1101 et seq.)

11. In proceeding to exclude land from irrigation district petition, alleging that petitioner was successor in interest to one whose land had previously been decreed to be excluded from irrigation district which wrongfully levied and collected assessments on such land, was not demurrable on ground that petitioner had no legal capacity to sue, that action was barred by statute of limitations and by laches of petitioner. (I. C. A. sec. 5-215, subd. 1; sec. 5-905.)

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. A party having plead that a decree has been entered granting certain relief, and not having alleged any reason why the same relief should be again granted, has not shown himself to be entitled to another decree to the same effect as the former one.

II. A party alleging he has "become and now is the successor in interest" to one whose land has been decreed to be excluded from an irrigation district, and that certain assessments have been wrongfully levied on said land and collected by the district, but who does not allege when or how he became such successor in interest, nor who made the payments, has not stated a cause of action for their recovery.

III. Idaho Code Annotated, Title 42, chapter 11, provides for the exclusion from an irrigation district of lands included therein which cannot derive a benefit therefrom.

IV. That chapter requires that a landowner, desiring to have his land excluded from the irrigation district, shall describe it in his petition filed with the board of directors thereof.

V. When the sufficiency of a pleading is questioned by demurrer, the pleader's conclusions cannot be made to take the place of indispensable facts.

VI. A pleader must state the facts of his case by averments direct and positive, and must not leave them to be deduced by argument and inference. If he omits essential facts from his pleading, it is demurrable.

VII. While a demurrer admits all material facts well pleaded, and all necessary intendments and inferences therefrom, failure of a pleader to allege material facts, necessary to his cause of action or defense, raises a presumption they do not exist.

APPEAL from the District Court of the Sixth Judicial District, for Butte County. Hon. Guy Stevens, Judge.

Appellant petitioned that the board of directors of an irrigation district be required to show cause why it had not excluded his land from the district in conformity to a decree of the court theretofore rendered, and for other relief. A demurrer to the petition was sustained and the proceeding dismissed. Affirmed.

Order affirmed. Costs awarded to respondent.

Robert M. Kerr, Jr., and Miss M. E. Schmitt, for Appellant.

The Court has inherent power to enforce its judgments and decrees, and to make such orders and process as may be necessary to render them effective. (Section 8-105, Idaho Code Annotated; Section 1-1622, Idaho Code Annotated; 34 Corpus Juris 737; Pease v. Rathbun Jones Company, 228 F. 273, 279; Gordon v. Hillman (Wash.), 219 P. 46.)

Clerical errors and misprisions in the record, whether made by the Court or counsel during the progress of the case, may be corrected at any time they can be shown to exist, and where, through mistake, there has been a failure to enter a judgment pronounced, the Court has power to correct the matter and order the proper entry made. (Wyllie v. Kent, 28 Idaho 16; 152 P. 194; Section 1-1603, Idaho Code Annotated; 34 Corpus Juris 229; 15 R. C. L. 679; State v. Douglass, 35 Idaho 140; 208 P. 236.)

Section 5-905, Idaho Code Annotated, is not, in any sense, a limitation on the inherent power of the Court to correct mistakes and clerical errors and make the record speak the truth and disclose the actual ruling or order of the Court. (Occidental Life Insurance Co. v. Niendorf, 55 Idaho 521; 44 P.2d 1099; Wyllie v. Kent, 28 Idaho 16; 152 P. 194; State v. Douglass, 35 Idaho 140; 208 P. 236; State v. Winter, 24 Idaho 749; 135 P. 739.)

John W. Jones, for Respondent.

It is only the lands "as described in the petition" that the board could by its order exclude from the district. Without a direct allegation to the contrary, we must assume that the lands as so described were excluded from the district by the order of the then board in March, 1928.

"Essential facts upon which determination of controversy depends should be stated with clearness and precision." (Philbrook vs. Randall, 231 P. 739 (Cal.) at p. 742.)

We submit that the original petition of Miller & Sons herein is a public record of the irrigation district. The appellant knows its contents and knows what land is described therein. We know what land is described therein. In four separate efforts an attempt has been made by the appellant to have an inference contrary to the fact indulged from other facts alleged in the petition.

"It always has been, and still is a general rule of pleading, that whatever facts are necessary to constitute the cause of action should be directly and distinctly stated in the declaration, and such facts should not be left to be inferred from other facts distinctly pleaded, and arguments, inferences and matters of law should be excluded." (Jones vs. Virginian Ry. Co. 179 SE 71.)

MORGAN, J. BUDGE, C.J., HOLDEN and AILSHIE, JJ., concur. GIVENS, J. (dissenting).

OPINION

MORGAN, J.

In appellant's third amended petition is alleged that on and immediately before December 20, 1926, Louis T. Miller & Sons hereafter called Miller & Sons, owned the Northeast Quarter of Section 12, in Township 3 North, Range 26, and Lots 1 and 2 and the East Half of the Northwest Quarter of Section 7 in Township 3 North, Range 27 East, Boise Meridian, in Butte County, Idaho, which property was within, and a part of, Big Lost River Irrigation District, hereafter called the district, and was the only real estate within said district owned by Miller & Sons; that on or about December 20, 1926, Miller & Sons, together with other landowners within the district, filed petitions with its board of directors wherein they alleged they were the owners of a good and sufficient water system which was adequate for the irrigation of their lands and which was independent of the water system of the district, and for that reason, their said lands, including those of Miller & Sons, would not and could not be benefited by the district; that thereafter said petitions were heard by the board of directors and it made and entered an order refusing to exclude the lands of petitioners, including those of Miller & Sons, from the district; that an appeal was duly taken by the petitioners, including Miller & Sons, from said order, to the district court; that a hearing thereof was had and, on or about March 1, 1928, said court made and entered its judgment and decree that the order of the board of directors of the district, denying the petitions, be reversed and the board was, by said order directed to grant the prayer of the petitions and detach and exclude said lands, and all of them, from the district, as of...