Perry v. Reynolds

• Decision Date: 31 January 1942
• Docket Number: 6953
• Citation: 63 Idaho 457,122 P.2d 508
• Parties: JOHN A. PERRY and BONDHOLDERS BUREAU, INC., a corporation, Respondents, v. D. O. REYNOLDS and LAURA REYNOLDS, husband and wife, Appellants
• Court: Idaho Supreme Court

122 P.2d 508

63 Idaho 457

JOHN A. PERRY and BONDHOLDERS BUREAU, INC., a corporation, Respondents, v. D. O. REYNOLDS and LAURA REYNOLDS, husband and wife, Appellants

No. 6953

Supreme Court of Idaho

January 31, 1942

Rehearing denied March 9, 1942

CORPORATIONS-FOREIGN CORPORATIONS-DOING BUSINESS WITHIN STATE-PROPERTY RIGHTS-ABANDONMENT-WATER AND WATER COURSES-DITCHES-LOCATION AND DESCRIPTION.

1. The fact that defendants in suit by foreign corporation denied corporation's allegation that it was "authorized to do and engage in doing business" in the state, did not render it incumbent on corporation to prove corporation's compliance with constitution and statutes dealing with regulation of foreign corporations doing business in the state. (Const. art. 11, sec. 10; I. C. A. secs. 29-501, 29-504, 29-505.)

2. Where foreign corporation maintained its principle place of business in another state and contract of sale of realty was executed in another state and was to be performed there, the fact that realty covered by the contract was situated within the state did not constitute "doing business" within the state within purview of constitutional provision dealing with regulation of foreign corporations doing business within the state. (Const. art. 11, sec. 10.)

3. A single isolated transaction does not constitute "doing business" in the state within meaning of constitutional provision dealing with regulation of foreign corporations doing business in the state. (Const. art. 11, sec. 10.)

4. A suit by a foreign corporation for an injunction restraining defendant from interfering with plaintiff's ditch across defendant's land which the corporation had contracted to sell to another did not constitute the "doing of business" within the state so as to require compliance by the corporation with the Idaho statutes and constitution since the contract of sale between the corporation and the purchaser was not an issue in the case. (I. C. A. secs 29-501, 29-504, 29-505; Const. art. 11, sec. 10.)

5. Convincing and satisfactory proofs are required to support a forfeiture by abandonment of a real property right.

6. In suit to enjoin defendants from interfering with plaintiffs' irrigation ditch across defendants' lands, decree which described point from which measurement of ditch was to be made as "approximately," and which specified that direction of ditch was in a general "southeasterly" direction, was too indefinite and uncertain, since neither the place from which measurement was to commence nor the direction could be determined, as "southeasterly" may be anywhere within an arc of 90 degrees.

7. A "canal" is something more than merely a line, and it should be described in a decree at least as to width and also as to the extent of right of way or easement along the canal for travel and use in maintenance and upkeep.

8. In suit to enjoin defendants from interfering with plaintiffs' irrigation ditch across defendants' lands, survey by licensed surveyor and field notes were not essential for decree describing ditch, location, right of way and easement, where anyone might make measurements from a definitely established corner or monument and so determine measure and mark the boundaries of the ditch and easement involved.

Rehearing denied March 9, 1942.

APPEAL from the District Court of the Fourth Judicial District, for Camas County. Hon D. H. Sutphen, Judge.

Action praying for injunction against defendants, restraining and enjoining them from interfering with plaintiffs' ditch across defendants' lands, and for damages. Judgment for plaintiffs. Defendants appeal. Affirmed in part and remanded for further proceedings.

Judgment affirmed in part, cause remanded. Costs equally divided.

James & James and Frank Croner, for Appellants.

A foreign corporation doing business in the state cannot take or hold title to real estate within the state prior to filing its articles and designation of statutory agent and a deed given under such circumstances is null and void. (Section 29-505 and 29-501 and 29-502; Dickens-West M. Co. v. Crescent, etc. Co., 26 Idaho 153 at 159 (2), 141 P. 566; Donaldson v. Thousand Springs Power Co., 29 Idaho 735, and on rehearing at page 754, 162 P. 334; John Hancock Mutual Life Insurance Company v. Girard, 57 Idaho 198 (5), 64 P.2d 254.)

Where there is no express statute upon the subject, it is held that a failure to use a ditch during the period prescribed by the statutes as a bar for the recovery of real property, works an abandonment of the ditch right. (Vol. 2 of Kinney on Irrigation, commencing near the bottom of page 1996; 17 Am. Jur., p. 1026, Sec. 141 (7); 1 A. L. R. 887 (cases cited there).

Charles Scoggin and Fred M. Taylor, for Respondents.

Merely denying the corporate existence of respondent Bondholders Bureau, Inc., did not raise the question of non-compliance, and having failed to demur specially or set up want of capacity to sue by answer, appellants waived the right to object. (Shaw Supply Company, Inc., supra; Marshall Field & Co., v. Houghton, 35 Idaho 653, 208 P. 851.)

The deed to Bondholders Bureau, Inc., is not null and void. (Idaho Session Laws 1937, Chap. 66; Bruun v. Hanson, 103 F.2d 685 (16, 17).

A foreign corporation may sue in the courts of this state to protect its title and right of possession to real estate as against a private party who trespasses thereon, or seeks or attempts to appropriate the same to his own use or benefit. ( Junction Placer Mining Co. v. Reed, 28 Idaho 219, 153 P. 564.)

Whether an easement has been abandoned is a question of fact to be ascertained from all the facts and circumstances of the case.

The intention to abandon is the material question. (17 Am. Jur. Sec. 142, page 1026, note 12; 19 C. J., Sec. 149, page 941, notes 18 and 19; Dean v. Colt (Ore.), 84 P.2d 481 (1).)

AILSHIE, J. Givens, C.J., Budge, Morgan, and Holden, JJ., concur.

OPINION

AILSHIE, J.

This action was commenced, praying for an injunction against appellants, restraining and enjoining them from interfering with respondents' ditch across appellants' lands, and enjoining them from disturbing or interfering with respondents using the ditch, conveying water through the same, and for $ 1,000 damages.

The respondents claimed to be the owners of "The NE1/4 SE1/4, NE1/4, and the W1/2 of Sec. 26, Twp. 1, S. Rge. 14 E.B.M.," comprising 520 acres. The appellants are the owners of the adjoining lands (580 acres), described as follows: "The NE1/4 of Sec. 22; the SE1/4 and the NW1/4 of Sec. 15; and the N1/2 NE1/4, Sec. 16, all in Twp. 1 S. Rge. 14 E.B.M." These lands are all arid, agricultural lands and require artificial application of water for the growing of crops. A ditch or canal was constructed diagonally across these lands for conveyance of irrigating water in 1887; and water was thereafter carried through the canal to respondents' land.

Respondent, Bondholders Bureau, Inc., acquired its title to the land by deed dated March 10, 1936. Respondent Perry had the land claimed by respondents under lease and was in possession of the same in 1933, '34, and '35, and contracted to purchase it from the Bondholders Bureau, Inc., in 1936. In 1937 appellants plowed in the ditch, claiming that respondents had abandoned and forfeited their right to use the same.

The original complaint was filed February 20, 1940, and thereafter, on March 18, 1940, an amended complaint was filed and served, and the case was tried on the issues therein presented. The case was tried to the court and special interrogatories were submitted to a jury. The findings of the jury were adopted by the court and a decree was entered in favor of respondents against appellants, granting the injunction prayed for and awarding $ 150 damages.

John A. Perry and Bondholders Bureau, Inc. are joined as plaintiffs and all the allegations of the complaint are made by plaintiffs (plural). The only specific reference in the complaint, to the character and capacity of plaintiff, Bondholders Bureau, Inc., is as follows:

"That the plaintiff Bondholders Bureau, Inc., at all times herein mentioned, was, and now is, a corporation organized and existing under and by virtue of the laws of the State of Colorado, and authorized to do and engage in doing business in the State of Idaho."

Appellants urge that the evidence fails to show that the Bondholders Bureau, Inc., had complied with the constitution (sec. 10, art. 11) and statutes (sec. 29-501, 29-504, and 29-505, I. C. A.) of this state, so as to entitle it to do business in Idaho; and for that reason, it was error for the court to enter findings and decree in favor of the respondents. It is true that there is no proof that the corporation fully complied with the constitution and statutes, in the matter of filing copy of its articles of incorporation and designation of its principal place of business and statutory agent. But no issue was raised by either demurrer or answer as to the capacity of the corporation to either take title to property or transact business in the state. It is contended, however, that the fact that defendants denied the allegation of the complaint above set out (Par. 1-A) is sufficient to raise the issue and render it incumbent on the plaintiffs to prove the corporation's compliance with the constitution and statute. This would be true, had it been alleged that the company was actually engaged "in doing business" in this state, but such is not the allegation. The allegation is rather that the corporation "was . . . . authorized to do and engage in doing business in the State of Idaho."

Here there is no showing by either pleading or proof, that the Bondholders Bureau, Inc., was "doing business in this state." It appears that the Bondholders Bureau, Inc.,...