Preis v. Idaho Irrigation Co., Ltd.

• Decision Date: 27 April 1923
• Parties: WILHELM PREIS, Appellant, v. IDAHO IRRIGATION CO., LTD., Respondent
• Court: Idaho Supreme Court

215 P. 466

37 Idaho 109

WILHELM PREIS, Appellant, v. IDAHO IRRIGATION CO., LTD., Respondent

Supreme Court of Idaho

April 27, 1923

WATER-CONTRACT TO FURNISH AND DELIVER-DEFAULT-ACTION FOR DAMAGES-DEFENSE-COMMUNITY DITCH-WATER-MASTER-FAILURE TO APPOINT.

1. Under the Carey Act contracts pleaded in this case, the construction company still being in control of the operating company, appellant made a prima facie case by proving such contracts, failure to deliver water in accordance therewith and consequent damage to his crops, with the amount of such damage. It was then incumbent upon respondent to prove that the failure of its water supply was due to an extraordinary drouth and that it had delivered to appellant his just proportion of the available supply.

2. In such an action as this the construction company must show an extraordinary drouth as the cause for the water shortage in order to make a good defense and an instruction to the jury that a drouth is a good defense is erroneous.

3. Failure of water users to appoint a water-master for a community ditch is not a good defense for a person association or corporation that is bound by contract to furnish water for irrigation if it fails to furnish the amount of water for which it is bound, but such person, association or corporation may not be held responsible for damage resulting from the improper or unfair distribution of water from a community ditch, no matter whether the full contract amount or less has been placed therein.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ensign, Judge.

Action for damages. Judgment for defendant. Reversed.

Judgment reversed. Costs to appellant.

Bissell & Bird and W. T. Stafford, for Appellant.

An unconditional and independent obligation rested upon the respondent to deliver to the appellant the contracted amount of water, or so much thereof as good husbandry might require and failing in this the respondent is liable on the contract for resultant damages. (Twin Falls etc. Co. v Martens, 271 F. 428; State v. Twin Falls etc. Co., 30 Idaho 41, 166 P. 220; Twin Falls etc. Co. v. Caldwell, 242 F. 177, 155 C. C. A. 17; Hanes v. Idaho Irr. Co., 21 Idaho 512, 122 P. 589.)

That portion of Sec. 3288, R. C., upon which the district court based its judgment of nonsuit had been repealed prior to the time appellant's right of action accrued. (Laws 1895, p. 174 et seq.; Laws 1899, p. 380, secs. 17, 19, 33, and title; Collins v. Twin Falls etc. Co., 28 Idaho 1-5, 152 P. 200; Laws 1903, p. 223, secs. 41, 60 and 61; United States v. Claflin, 97 U.S. 546, 24 L.Ed. 1082; 6 Am. & Eng. Ency. of Law, 720; note, 88 Am. St. 267 et seq.; 25 R. C. L. 914 et seq.; People v. Lytle, 1 Idaho 143; Noble v. Bragaw, 12 Idaho 265, 85 P. 903.)

If it is a live statute, sec. 3288, R. C., has no application to the state of facts involved in the instant case. (25 R. C. L. 988; C. S., sec. 9444; Collins v. Twin Falls etc. Co., supra; Hanes v. Idaho Irr. Co., supra.)

Walters, Parry & Bailey, for Respondent.

The theory upon which appellant brought and tried this action was not a proper theory for determining the rights between the parties. (Twin Falls Salmon River Land & Water Co. v. Caldwell, 272 F. 356; Tapper v. Idaho Irr. Co., 36 Idaho 78, 210 P. 591; Staats v. Ten Eyck's Exrs., 3 Caines (N. Y.), 111, 2 Am. Dec. 254; Sommerville v. Idaho Irr. Co., 21 Idaho 552, 123 P. 302.)

The subsequent acts cited by appellant are not sufficient to operate as a repeal of sec. 5632, C. S., by implication. (25 R. C. L. 918, 919, 924; Fulkerson v. Bristol, 95 Va. 1, 5; 27 S.E. 815, and authorities cited; Lambert v. Barrett, 115 Va. 136, Ann. Cas. 1914D, 1226, 78 S.E. 586; University of Utah v. Richards, 20 Utah 457, 77 Am. St. 928, 59 P. 96; Davis v. Fairbairn, 3 How. (U.S.) 636, 11 L.Ed. 764; Wood v. United States, 41 U.S. (16 Pet.) 363, 10 L.Ed. 993; Chicago, M. & St. P. R. R. Co. v. United States, 127 U.S. 409, 8 S.Ct. 1194, 32 L.Ed. 180; 36 Cyc. 1074; Merrill v. Gorham, 6 Cal. 41; Ex parte Smith, 40 Cal. 419; Bank of British North America v. Cahn, 79 Cal. 463, 21 P. 863.)

Sec. 5632 has been expressly referred to as an existing statute by the legislature, and also adopted into the code of this state, subsequent to the date of the acts which appellant claims operate as implied repeals thereof, and is consequently a valid statute. (25 R. C. L. 926; United States v. Fisher, 2 Cranch (U.S.), 358, 399, 2 L.Ed. 304; Pratt v. Swan, 16 Utah 483, 52 P. 1092.)

DUNN, J. Budge, C. J., and McCarthy, J., concur, William A. Lee, J., concurs in the conclusion.

OPINION

DUNN, J.

This is an action brought by appellant against respondent, a Carey Act construction company, for damages claimed to have been suffered by appellant because of the failure of respondent to furnish him water for irrigating his crops in the season of 1915 in compliance with a certain contract entered into by the respondent with the state of Idaho and other contracts entered into by respondent with appellant by which respondent agreed to furnish and deliver to appellant one-eightieth of a cubic foot of water per second per acre for the irrigation of appellant's lands.

Respondent denied the allegations of the complaint as to its contract to furnish the above-mentioned amount of water to appellant, and denied its failure to furnish water as alleged in the complaint, and also denied the damages which appellant claimed to have suffered by injury to and loss of his crops. As a defense to the action respondent pleaded an unusual and extraordinary drouth in the season of 1915 and in consequence thereof an unprecedented shortage of water all over the southern part of the state and particularly in Big and Little Wood Rivers, from which it obtained its water supply. It claimed to have distributed proportionally and equitably among the water users on this project all of the water supply available for that season, and by reason thereof to be discharged from any liability for the crop shortage set up by appellant.

The respondent also pleaded as a defense that appellant, who with two other parties received water from respondent through a community ditch, had failed to comply with R. C., sec. 3288, now C. S., sec. 5632, which reads as follows:

"Where two or more parties take water from said ditch, canal or reservoir at the same point, to be conveyed to their respective premises for any distance through the same lateral or distributing ditch, such parties shall, on or before April 1 of each year, select some person to have charge during the succeeding season of the distribution of water from such lateral, whose duty it shall be to ascertain and see that the amount of water to which each of the parties interested is entitled is properly apportioned and distributed. It shall be his further duty to see that the said person, association or corporation, contracting to furnish such water shall deliver the amount as provided in section 5630, and in case of dispute between such person and the said person, association or corporation as to the quantity of water to be delivered, or the amount actually delivered, the matter shall be referred to the department of reclamation. The parties entitled to said water shall keep their ditches and laterals in good condition for carrying and distributing the same. In case the parties entitled to the use of water as in this section stated shall neglect or refuse to perform the duties imposed upon them by this section, they shall have no cause for damage against the person, association or corporation furnishing said water for failure to properly furnish and distribute the same."

C. S., sec. 5630, is as follows:

"Any person, association or corporation which may contract to deliver a certain quantity of water to any party or parties shall deliver the same to such party or parties, together with a reasonable and necessary allowance for loss by evaporation and seepage, at some convenient point on the main ditch, canal or reservoir of said person, association or corporation, or on any branch or lateral...