Sanderson v. Salmon River Canal Co., Ltd.

• Decision Date: 02 July 1921
• Citation: 34 Idaho 145,199 P. 999
• Parties: THOMAS SANDERSON, Plaintiff, v. SALMON RIVER CANAL COMPANY, LIMITED, a Corporation, Defendant
• Court: Idaho Supreme Court

199 P. 999

34 Idaho 145

THOMAS SANDERSON, Plaintiff, v. SALMON RIVER CANAL COMPANY, LIMITED, a Corporation, Defendant

Supreme Court of Idaho

July 2, 1921

CAREY ACT-WATER CONTRACT-USE OF WATER-SETTLER'S RIGHT-MANDAMUS TO COMPEL DELIVERY OF WATER-AFFIDAVIT-DEMURRER-ANSWER-MOTION TO STRIKE-SECRETARY OF INTERIOR-STATE LAND BOARD-COMMISSIONER OF RECLAMATION-REFUSAL TO PATENT LAND-RELINQUISHMENT BY STATE-EFFECT ON WATER RIGHT-NECESSARY PARTIES-ADVERSE INTERESTS-ANOTHER SUIT PENDING.

1. Demurrer on ground of nonjoinder of necessary parties, or another action pending, does not lie unless such facts appear on the face of the complaint or affidavit.

2. Where plaintiff alleges that defendant, an operating company on a Carey Act project, has sufficient water available to furnish water to which he is entitled under his contract defend- ant's denial on the ground of lack of sufficient information to enable it to answer, is not sufficient to raise that issue.

3. An affidavit alleging that plaintiff has a Carey Act water contract, that he and his predecessors have used the water on land originally included under the project, that he has a crop which needs the water, that there is water available which could be delivered to him, that he has tendered the maintenance charges for the current irrigation season, but that defendant, the operating company, has refused to deliver the water on demand, sets forth a prima facie cause of action against the defendant in mandamus to compel delivery of the water.

4. If plaintiff has a clear right to have water delivered to him by a company operating a canal and distributing water, if he has crops which are in need of such water and if the company has water which can be delivered to him, mandamus is the proper remedy.

5. Mandamus is not a proper remedy to decide conflicting interests. If third parties have rights or interests adverse to those of plaintiff, mandamus is not the proper remedy.

6. Under the Carey Act contract between the construction company and the water users, as sanctioned by the federal and state governments, the water rights of all entrymen and contract holders are of equal rank.

7. The right to a continued use of water arising from its beneficial use in the past under a Carey Act contract cannot be divested by action of the Secretary of the Interior, of the state land board, or of the commissioner of reclamation.

8. Where plaintiff, an entryman on a Carey Act project, has beneficially used water delivered to him under his contract an agreement between the Secretary of the Interior and the state land board that only certain lands within the project shall be patented, that plaintiff's land shall not be patented but relinquished by the state, and that the available water shall all be appurtenant to the lands selected for patent, does not divest plaintiff of his right to the continued use of the water. Such facts do not vest in the owners of the patented land any right to the use of the water superior to or adverse to the plaintiff's.

9. One who has appropriated water and beneficially used it has a right to use it independent of his ownership of the land.

10. C S., sec. 3018, cannot have the effect of making a water right an inseparable appurtenance of the land.

11. The fact that plaintiff has not paid the purchase price under his contract is no defense to such action. It is sufficient if he has paid or tendered the maintenance charges for the cur- rent irrigation season. In such case the fact that the construction company cannot enforce its lien on the land which the government refuses to patent is not a defense. It can foreclose on the water right if the plaintiff is in default under the contract and the law.

12. Where an attack upon plaintiff's water right and a claim of adverse interests of third parties are based solely upon the official acts mentioned in paragraph 8 of this syllabus neither the officials mentioned nor the construction company nor the owners of the patented lands are necessary parties.

13. When allegations of an affirmative defense to an application for writ of mandate do not state any defense recognized by the law, they should be stricken on motion.

14. An allegation in the answer that there is another action pending and undetermined in the state or federal court, involving the same parties and issues, raises a material issue.

Original mandamus proceeding to compel delivery of irrigation water. Demurrer to affidavit overruled. Motion to strike from answer sustained.

Defendant's demurrer to the plaintiffs' affidavit overruled, the plaintiff's motion to strike from defendant's answer sustained.

E. M. Wolfe and J. F. Martin, for Plaintiff.

Mandamus lies to compel the performance of an unqualified duty imposed by law, in this class of cases. (Gerber v. Nampa etc. Irr. Dist., 16 Idaho 22, 100 P. 88; Id., 19 Idaho 765, 116 P. 104; Furbee v. Alexander, 31 Idaho 738, 176 P. 97; Lewis v. Mountain Home Co-operative Irr. Co., 28 Idaho 682, 156 P. 419; State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039, L. R. A. 1916F, 236; Helphery v. Perrault, 12 Idaho 451, 86 P. 417; Beem v. Davis, 31 Idaho 730, 175 P. 959.)

The fact that the injunction suit is pending in the district court does not constitute a defense in this case. (People v. Farmers' High Line Canal & Reservoir Co., 25 Colo. 202, 54 P. 626; Miller v. Imperial Water Co., 156 Cal. 27, 103 P. 227, 24 L. R. A., N. S., 372.)

Sham or irrelevant answer may be stricken out on motion. (C. S., sec. 6708; First Nat. Bank v. Martin, 6 Idaho 204, 55 P. 302.)

"Ownership of a ditch and the water right for waters to flow through the ditch may, and often do, exist in different parties." (Ada County Farmers' Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990, 40 L. R. A. 485; Swank v. Sweet-water Irr. & Power Co., Ltd., 15 Idaho 353, 98 P. 297; Parke v. Boulware, 7 Idaho 490, 63 P. 1045; Hall v. Blackman, 8 Idaho 272, 68 P. 19.)

Where the proceeding is special, administrative in character, the conclusion of the officer rendering a decision therein does not conclude the rights of the parties, and they are left to their right of action in the courts. (Bear Lake County v. Budge, 9 Idaho 703, 108 Am. St. 179, 75 P. 614; Speer v. Stephenson, 16 Idaho 707, 102 P. 365; Sarret v. Hunter, 32 Idaho 536, 185 P. 1072.)

Vested rights cannot be set aside by the department. (McGehee v. Mathis, 4 Wall. (U. S.) 143, 18 L.Ed. 314; Fletcher v. Peck, 6 Cranch (U. S.), 87, 3 L.Ed. 162; El Paso Brick Co. v. McKnight, 233 U.S. 250, 34 S.Ct. 498, 58 L.Ed. 943, L. R. A. 1915A, 1113; Cornelius v. Kessel, 128 U.S. 456, 9 S.Ct. 122, 32 L.Ed. 482; Hans v. State, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842; Lockwood v. Freeman, 15 Idaho 395, 98 P. 295; Gard v. Thompson, 21 Idaho 485, 123 P. 497; Nielson v. Parker, 19 Idaho 727, 115 P. 488.)

Failure to make payment for the water is not a cause for refusing mandamus. (Adams v. Twin Falls-Oakley Land & Water Co., 29 Idaho 357, 161 P. 322.)

No person's property can be taken without due process of law. (Fisher v. Bountiful City, 21 Utah 29, 59 P. 520; Bennett v. Twin Falls etc. Co., 27 Idaho 643, 150 P. 336; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; City of South Pasadena v. Pasadena Land & Water Co., 152 Cal. 579, 93 P. 490; El Paso Brick Co. v. McKnight, 233 U.S. 250, 34 S.Ct. 498, 58 L.Ed. 943, L. R. A. 1915A, 1113.)

James R. Bothwell, for Defendant.

The Secretary of Interior and the commissioner of reclamation are necessary parties, and unless said officers be made defendants herein and their jurisdiction and authority determined, this defendant will be subject to conflicting orders and determinations from courts and executive and administrative officers of the state and federal government. (Twin Falls Salmon River Land & Water Co. v. Caldwell, 242 F. 177, 155 C. C. A. 17; Id., 272 F. 356.)

"The right of appropriation must be exercised with some regard to the rights of the public. It is not an unrestricted right." (Schodde v. Twin Falls Land & Water Co., 224 U.S. 107, 32 S.Ct. 470, 56 L.Ed. 686, 1 Morr. Min. Rep. 683; Basey v. Gallagher, 20 Wall. (U. S.) 670-683, 22 L.Ed. 452-454; Yakima Development Co. v. State of Wash., 34 Land Dec. 453.)

Turner K. Hackman, for Defendant.

"The writ of mandamus is a remedy to compel the performance of a duty required by law, where the party seeking the relief has no other legal remedy, and the duty sought to be enforced is clear, and indisputable. Both requisites must concur in every case." (26 Cyc. 168; Territory ex rel. Crosby v. Crum, 13 Okla. 9, 73 P. 297.)

The carrying out of the provisions of federal and state law is left to the executive branch of the government, and while acting in his administrative capacity an executive official should not be interfered with by the judicial branch of the government. This fundamental principle applies to the land office of the federal government and should apply with equal force to the executive branch and the reclamation bureau of the state government. (Quinby v. Conlan, 104 U.S. 420, 26 L.Ed. 800; Wiseman v. Eastman, 21 Wash. 163, 57 P. 398; Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 18 S.Ct. 208, 42 L.Ed. 591; Steel v. St. Louis Smelting etc. Co., 106 U.S. 447, 1 S.Ct. 389, 27 L.Ed. 226; Brown v. Hitchcock, 173 U.S. 473, 19 S.Ct. 485, 43 L.Ed. 772; Lane v. United States ex rel. Mickadiet, 241 U.S. 201, 36 S.Ct. 599, 60 L.Ed. 956.)

Time neglect or laches of federal or state officials does not estop either federal or state governments from taking such action as could have been taken in the first instance. (Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 61 L.Ed. 791, at 818; Pine River Logging & Improvement Co. v. United States, 186 U.S....