Scilley v. Red Lodge-Rosebud Irr. Dist.
| Citation | 272 P. 543,83 Mont. 282 |
| Decision Date | 14 November 1928 |
| Docket Number | 6276. |
| Parties | SCILLEY v. RED LODGE-ROSEBUD IRR. DIST. et al. (FARM MORTGAGE CORPORATION, Intervener). |
| Court | United States State Supreme Court of Montana |
Rehearing Denied Dec. 21, 1928.
Appeal from District Court, Carbon County; Robert C. Stong, Judge.
Action by Jessie G. Scilley against the Red Lodge-Rosebud Irrigation District and others, in which the Farm Mortgage Corporation intervened. Judgment for plaintiff, and defendants and intervener appeal. Affirmed.
Wood & Cooke, of Billings, and John G. Skinner, of Red Lodge, for appellants.
Johnston Coleman & Johnston, of Billings, for respondent.
Early in 1926 Jessie G. Scilley, as the owner of land in the Red Lodge-Rosebud Irrigation District, commenced action against the district and its directors, and Charlotte Dilworth, as treasurer of Carbon county, seeking a decree of the district court of that county declaring the order creating the district null and void, severing her land from the district and enjoining the county treasurer from selling it for delinquent taxes and the directors from levying further assessments against it.
Plaintiff's amended complaint contains appropriate allegations to support the decree sought, if the facts alleged entitled her to any relief.
The Farm Mortgage Corporation, holder of a bond issued by the district, was permitted to intervene. Its so-called "complaint in intervention" is in fact an answer containing admissions and denials of the allegations of the complaint, and affirmative defenses based upon alleged estoppel and bars to plaintiff's action.
The defendants' answer is, in effect, the same as that interposed by the intervener. All new matter was denied by replies.
Being an equitable action, the cause was tried to the court without a jury. At the outset, defendants and the intervener objected to the introduction of any testimony on the ground that the complaint does not state a cause of action, nor entitled plaintiff to any relief. The objection was overruled, and oral and documentary evidence was adduced by all parties to the action. In due time the court made and filed its findings of fact and conclusions of law in favor of plaintiff and thereon entered its judgment and decree severing and excluding plaintiff's land from the district, enjoining its sale for delinquent taxes, and restraining the directors from further levy or assessment against it.
Defendants and the intervener have appealed from the judgment. They specify error upon the entry of judgment and the overruling of their objection to the introduction of testimony. The first of these specifications is divided into six subheads, but they are all argued together and present but the questions hereinafter discussed.
Plaintiff's proof follows the allegations of the complaint and supports the findings made, which will, therefore, not be disturbed.
From the court's findings and those necessarily implied, the facts on which the trial court based its conclusions of law and judgment are substantially as follows: On March 23, 1920, a petition for the creation of the defendant district was filed in the district court of Carbon county, which petition included a description of 360 acres of land owned by plaintiff, but was silent as to whether such land was irrigated or non-irrigated. It contained a recital that the names and post office addresses of owners not residing in Carbon county were contained in "Exhibit A" attached thereto. This exhibit but lists the owners as "signers" of the petition and "non-signers," plaintiff being listed in the latter class, and her post office address being given as "Luther, Mont.," a town in Carbon county. In fact the plaintiff was a resident of Twin Falls, Idaho, which fact was known to the drafters of the petition, where she located with her husband on March 5, 1920, going there from Canada, but visiting for a few days before proceeding to Twin Falls, with her son who resided on the land in question as a crop renter. The land constituted an improved, irrigated farm with an adequate supply of water and irrigating system appurtenant thereto which covered all but approximately 20 acres thereof.
On the filing of the petition, the district court forthwith fixed the time of hearing thereon as May 4, 1920, and directed publication of notice of hearing, and of the petition as provided by law. A copy of the petition and notice was thereafter published in a newspaper of the county, in its issues of March 31 and April 7, and the clerk of the court mailed copies to all owners of land described in the petition whose post office addresses were given in "Exhibit A" as being outside of the county, but did not include plaintiff in his mailing list, and no such copies were ever received by plaintiff at Luther, or elsewhere. Plaintiff never consented to the inclusion of her land in the district, in writing or otherwise, and had no knowledge of the hearing to be had on the petition.
On August 10, 1920, the district court entered its order creating the district including plaintiff's land therein, a certified copy of which was duly filed in the office of the recorder of Carbon county on September 29, 1920.
All steps taken for the creation of the district were taken under permissive statutes of this state for the creation of irrigation districts, in good faith and a bona fide attempt to comply with such statutes; and ever since its purported creation the district has functioned and done business as a public corporation of the state. In 1921, and again in 1924, it levied an assessment on the lands within the district, and in each of such years its proportion of such tax was spread against plaintiff's land and the amount thereof paid by plaintiff's husband with the general taxes due on the land, but neither plaintiff nor her husband knew that irrigation district taxes were included in the taxes so paid.
In 1923 the district issued and sold bonds of the district totaling $418,000, one of which is now owned by the intervener and, the proper steps having been taken, the district court approved and confirmed the sale; no notice of this proceeding was served upon plaintiff, and she had no knowledge of the bond issue.
In 1925 the district levied an assessment against all lands in the district for the payment of certain costs of construction, principal and interest on bonds, and other charges, as well as for operating and maintenance expenses, and these amounts for the several purposes were so intermingled that the proportion or amount levied for operating and maintenance cannot be definitely determined. The proportion of this assessment charged to plaintiff's land was $310.35, which amount was duly spread on the books of the county and added to the general taxes against the land for the year 1925, amounting to $153.92.
Plaintiff first became aware of the fact that her land was taxed for irrigation district purposes when she received her tax notice in the fall of 1925. She then investigated, and ascertained for the first time that her land had been included in the district. She thereupon tendered to the county treasurer the amount of the general taxes; the treasurer refused the tender and plaintiff commenced this action, depositing the amount tendered in court.
As plaintiff had no knowledge of the proceedings, she, of course, did not appeal within the time allowed by law, or at all, from either the order creating the district, or the order confirming the sale of bonds.
It will be noted that the judgment here does not declare that the district was never legally created, nor affect any part thereof except the land of plaintiff, and the findings of the court warrant the conclusion that the district exists as a de facto corporation, at least. The basis of the decision is the conclusion of the court that it never acquired jurisdiction over the plaintiff or her land, by reason of defective service of notice by publication; second, because of failure to personally serve a copy of the petition and notice of hearing upon her; and, third, by failing to secure from her written consent to the inclusion of her irrigated land within the district.
1. Our codes provide the manner in which irrigation districts may be organized and bonds issued and sold, and declare the effect of orders creating such districts and affirming their bond issues. Conceding, for the sake of argument, that the provisions regarding publication and service of notice of hearing, and requiring consent in writing to the inclusion of irrigated lands in the district, were violated, counsel for defendants and the intervener first contend that plaintiff cannot maintain her action, as she did not appeal within the time allowed by law from either the order creating the district, or the order confirming the issuance and sale of the bonds. In this regard, section 7169, Revised Codes of 1921, after dictating the findings which shall be made by the court on hearing the petition and providing for the entry and recording of the order creating the district, declares:
To continue reading
Request your trial