Sanderson v. Salmon River Canal Co.
Decision Date | 06 August 1921 |
Parties | THOMAS SANDERSON, Plaintiff, v. SALMON RIVER CANAL COMPANY, a Corporation, Defendant |
Court | Idaho Supreme Court |
CAREY ACT PROJECT-WATER RIGHTS-PRIORITIES.
As between contract holders under a Carey Act project, claiming under the same appropriation, who have applied the water beneficially to the land, there are no priorities.
Original mandamus proceeding to compel delivery of irrigation water. Application of defendant to amend answer. Granted in part and denied in part.
Defendant's application granted in part and denied in part.
E. M. Wolfe and J. F. Martin, for Plaintiff.
All contracts sold under the Carey Act and under the contracts with the state are of equal right and of equal priority. (State v. Twin Falls Canal Co., 21 Idaho 410, 121 P 1039, L. R. A. 1916F, 236; Sanderson v. Salmon River Canal Co., ante, p. 145, 199 P. 999; Jackson v Indian Creek Reservoir etc. Co., 16 Idaho 430, 101 P. 814.)
Jas. R. Bothwell and Turner K. Hackman, for Defendant.
Richards & Haga, Amici Curiae.
The early purchasers could not, without their consent, have their vested rights impaired and diminished until they could neither get title to their lands nor reclaim their lands sufficiently to raise profitable crops.
"No person, company or corporation shall contract to deliver more water than such person, company or corporation has a title to, . . . ." (Sec. 5636, C. S.; Blakely v. Ft. Lyon Canal Co., 31 Colo. 224, 73 P. 249; New La Junta & Lamar Canal Co. v. Kreybill, 17 Colo. App. 26, 67 P. 1026; La Junta & Lamar Canal Co. v. Hess, 6 Colo. App. 497, 42 P. 50; Wyatt v. Larimer etc. Irr. Co., 18 Colo. 298, 36 Am. St. 280, 33 P. 144.)
Water rights cannot be sold beyond the carrying capacity of the system or the available supply. (Wisconsin Cent. R. R. Co. v. Price County, 133 U.S. 496, 10 S.Ct. 341, 33 L.Ed. 687; Shoshone Mining Co. v. Rutter, 177 U.S. 505, 20 S.Ct. 726, 44 L.Ed. 864; Lewis v. Mountain Home etc. Irr. Co., 28 Idaho 682, 156 P. 419; Gerber v. Nampa & Meridian Irr. Dist., 16 Idaho 1, 100 P. 80; Bardsly v. Boise Irr. etc. Co., 8 Idaho 155, 67 P. 428.)
Following the opinion of this court on plaintiff's motion to strike from defendant's original answer, defendant has applied for permission to amend the answer, to which plaintiff has objected on the ground that the amendment proposed is irrelevant, and does not constitute a defense to the action. The proposed amendment relates to two matters, which we will treat separately. Its first purpose is to deny that plaintiff owns stock of the defendant, or of the construction company, or has succeeded to the interests of Edgar J. Finch in a water contract covering the land described in the complaint, these matters being admitted in the original answer. Counsel state that the admissions were a mistake, accounted for by the haste with which the original pleading was prepared. We conclude that this amendment should be allowed.
The second purpose of the amendment is to set up other rights to the use of the water which are claimed to be prior to the plaintiff's. That part of the amendment which bears on this matter is as follows:
Before discussing this matter, it is well to recall the gist of the opinion on the first hearing. We held that the complaint showed a right in plaintiff to compel the delivery by defendant of his pro rata share of the water, that right being based on his contract, and the dedication of the water to the land by use in the past. We also held that, if defendant could set up facts, which, if true, would give third parties a prior or adverse right to the use of the water, these proceedings should be dismissed, and plaintiff remitted to his bill in equity. (Sanderson v. Salmon River Canal Co., ante, p. 145, 199 P. 999.) Since then counsel have again urged upon us the theory that, under a Carey Act project, the settler gets no vested right to the use of water until the Secretary of the Interior has decided that a patent should issue to his land. It is claimed that the decisions of the circuit court of appeals in the Caldwell Case, 242 F. 177, lean to this view. We do not so read them. In any event we do not subscribe to that view. The laws of the state of Idaho govern as to the acquisition of water rights, and the distribution of water on a Carey Act project. To hold that the settler, who, at the invitation of the federal and state governments, goes upon the land, and spends his substance and strength in improving it by the use of the water, obtains no right to its use until and unless the Secretary of the Interior patents the land, would be, to our mind, an unjust rule, and in plain disregard of the fundamental principle of Idaho irrigation law, that one who lawfully makes beneficial use of water upon land acquires a right to its use. (Idaho Const., XV, 4; Gerber v. Nampa etc. Irr. Dist., 16 Idaho 1, at 22, 100 P. 80.)
Are the facts set up in the latter part of the proposed amendment relevant and do they present any defense? The point urged is that, even on a Carey Act project, priority of use gives priority of right. C. S., sec. 2998, which was in force throughout the transaction covered by these pleadings, provides that the rights of a settler on a Carey Act project shall embrace a proportionate interest in the canal or other irrigation works together with all the rights and franchises attached thereto.
(State v. Twin Falls Canal Co., 21 Idaho 410, at 439, 121 P. 1039, 1049, L. R. A 1916F, 236; State and Rayl v. Twin Falls etc. Water Co., 30 Idaho 41, at 59, 60, 166 P. 220.) By the terms of the contract between the state and the construction company the latter agrees to sell water rights without preference or partiality other than that based upon priority of application, the water rights having been taken for the benefit of the entire tract of land to be irrigated from the system. The certificate of shares of the capital stock of the...
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