Owen v. Nampa and Meridian Irrigation Dist.

Decision Date03 February 1930
Docket Number5427
CourtIdaho Supreme Court
PartiesCORA M. OWEN, as Treasurer of Ada County, Idaho, etc., Respondent, v. NAMPA & MERIDIAN IRRIGATION DISTRICT, Appellant

WATERS AND WATERCOURSES - CREATION OF WATER DISTRICTS - EVIDENCE-EXPENSES OF WATER-MASTER-ACTION TO RECOVER-ATTORNEY FEES.

1. Supreme court decision, decree and orders of trial court determining priorities and extent of several water rights in Boise River, though not final adjudication in sense of becoming res judicata, held to constitute adjudication of waters of Boise River within C. S., sec. 5608, authorizing creation of water districts providing, however, that section shall not apply to streams or water supplies whose priorities of appropriation and use have not been adjudicated.

2. In action for contribution for expense of water-master certified copy of instrument in office of commissioner of reclamation describing water district, boundaries, streams included, counties in which located, etc., in substantial compliance with C. S., sec. 5608, held properly admitted.

3. Where water user's proportion of costs and expenses was properly determined by water commissioner, water user, when sued for such costs and expenses, held liable for attorney fees under Laws 1927, chap. 39, under which water district was operated.

4. Though water district may never have been legally constituted under C. S., sec. 5608, and Laws 1927, chap. 39, where water user actively participated in annual meetings, cast largest number of votes of any user for period of eleven years, and received benefits of orderly distribution of waters during that time, water user held estopped to deny liability for proportionate share of costs and expenses of water district.

5. Question whether water-master is wrongfully diverting waters in violation of adjudication respecting water rights is foreign to action for contribution for expense of water-master and cannot be determined therein, especially where abuse can be corrected by appropriate proceeding.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. B. S. Varian, Judge.

Action for contribution for expense for water-master. Judgment for plaintiff. Affirmed.

Judgment affirmed with costs to respondent. Petition for rehearing denied.

McElroy & Chalfant, for Appellant.

C. S sec. 5608. "The department of reclamation shall divide the state into water districts in such manner that each public stream and tributaries or independent source of water supply, shall constitute a water district: . . . . provided, that this section shall not apply to streams or water supplies whose priorities of appropriation and use have not been adjudicated by the courts having jurisdiction thereof." (Italics are ours.)

The proviso of the foregoing section is identical, word for word, with the proviso found in sec. 3274, Revised Codes of Idaho, as amended by Session Laws of 1909, p. 327, being the section construed in the case of Masters v. United States, infra, and also being identical with the proviso found in said section as amended by 1915 Session Laws, chap. 34, p. 106, being the law in effect on January 29, 1916, when the alleged order creating Water District 12--A was made by the state engineer.

The reason that the jurisdiction is limited to adjudicated rights is thus stated in case of Marsters v. United States, 236 F. 663, 149 C. C. A. 659, as follows:

"To hold that the water master or water commissioner or both combined, can determine how much water an appropriator is legally entitled to would obviously be to hold, in effect, that those executive officers can deprive an appropriator of his property without due process of law."

What is an adjudication of priorities of appropriation of water from a public stream?

The term "adjudicated" is used in secs. 5608, 5609 and other sections of the statute relating to the duties of the commissioner of reclamation. The procedure is governed by secs. 7032--7036. This term is defined in C. S., sec. 7033.

T. L. Martin and Scatterday & Stone, for Respondent.

Water District 12--A, comprising the Boise River and its tributaries, was legally created. (Chapter 34, Sess. Laws 1915, pp. 103--113; C. S., sec. 5608 as amended by chap. 63, Sess. Laws 1927, p. 78.)

The waters of the Boise River are "adjudicated" within the meaning of the statutes of this state governing the distribution of water. (Farmers' Co-operative Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481.)

Attorneys' fees were properly allowed in this case. (Chapter 39, Sess. Laws 1927, p. 51, see p. 53.)

SUTTON, District Judge. Givens, C. J., Budge and Lee, JJ., and Brinck, D. J., concur.

OPINION

SUTTON, District Judge.

The plaintiff and respondent, as treasurer of Ada county, state of Idaho, began this action on the relation of Water District 12--A of the State of Idaho, to recover from the defendant and appellant its proportion of the cost and expense of the distribution of the waters of Boise River for the year 1927. Plaintiff had judgment for $ 765.53 with interest at seven per cent from June 1, 1927; also $ 250.00 attorney fees and costs. From this judgment the defendant has appealed and has set up fourteen assignments of error. The sum and substance of the several assignments may be stated in two propositions:

1. That there is no Water District 12--A.

2. That the court erred in allowing attorney fees against the defendant.

The trial court found Water District 12--A to have been created by an order of the state engineer, and to be still existent, by its third finding of fact which is as follows:

"That Water District 12--A is, and since the 29th day of January, 1916, has been, a duly created, organized and existing water district within the counties of Ada, Canyon and Elmore; said water district having been created by order of the State Engineer of the State of Idaho (now Commissioner of Reclamation) on January 29, 1916."

The court further found in findings numbered 4 and 8, inclusive, that the water users of the Boise River met each and every year from 1916 to 1927, both inclusive, pursuant to due and legal notice at the time fixed by law at the place designated in the order creating said water district; that each of said annual meetings "fully complied with the law governing the holding of the meetings of the water users of water districts of this state, and at each of such meetings elected a chairman and secretary and elected a water-master, fixed his compensation, and otherwise performed the acts authorized by the statutes of the state relating to water districts." That copies of the minutes of the respective meetings were duly filed in the office of the commissioner of reclamation each and every year; that without exception the person elected as water-master by the water users entered upon the discharge of his duties and distributed the waters of Boise River for each of said years; that defendant and appellant was represented at and took an active part in each and every of said meetings except the one for the year 1927, at which meeting a representative of defendant was present but took no part in the proceedings; that defendant paid its proportion of the costs and expenses of said Water District 12--A for each of the years 1916 to 1926 inclusive.

It appears from the record that at the 1927 meeting it was determined to operate the water district under and be governed by the provisions of chap. 39, Sess. Laws 1927. The trial court in effect found that all provisions of that law had been complied with; that the amount due from defendant for the year 1927, according to the budget, was $ 940.33; that the plaintiff, as treasurer of Ada county duly mailed to the defendant a notice showing the amount due from said defendant and that said amount would be due and payable on the first day of June, 1927; that after the close of the irrigation season of 1927 and prior to the fifteenth...

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5 cases
  • Hayward v. Kalamazoo Stove Co.
    • United States
    • Michigan Supreme Court
    • November 9, 1939
    ...2d Ed., p. 110, and does not, under the statute, imply finality in the sense of becoming res adjudicata. Owen v. Nampa & Meridian Irr. Dist., 48 Idaho 680, 285 P. 464; 2 C.J.S. Adjudication, page 49. In England, whence the workmen's compensation law came, there is no written Constitution, n......
  • Breckenridge v. Johnston
    • United States
    • Idaho Supreme Court
    • December 12, 1940
    ... ... Ketchen, 54 Idaho 56, 28 P.2d 824; Nampa & Meridian ... Irr. Dist. v. Barclay, 56 Idaho 13, 47 ... fraud. ( Emmett Irrigation District v. Thompson, 253 ... F. 316, 164 C. C. A. 98; ... Craney, 36 Idaho 11, 208 P. 407; Owen v. Nampa & ... Meridian Irr. Dist., 48 Idaho 680, 285 P ... ...
  • Nettleton v. Higginson
    • United States
    • Idaho Supreme Court
    • January 12, 1977
    ...and places of use of all of the appropriators, and that same principle was later recognized by this Court in Owen v. Nampa & Meridian Irrig. Dist., 48 Idaho 680, 285 P. 464 (1930). It is also essential for an adjudication that the duty of water be determined by the court. Farmers' Co-operat......
  • Nampa & Meridian Irrigation District v. Barclay
    • United States
    • Idaho Supreme Court
    • July 25, 1935
    ... ... 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 ... 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 ... ...
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